Opinion
No. 01-4765
July 15, 2002
MEMORANDUM OF DECISION AND ORDER ON PENDING MOTIONS
This action, as originally filed, addressed solely the issue of the BRA's compliance with procedural prerequisites to the taking of the property in issue, particularly the giving of proper notice to the plaintiff and the proper identification of the property in the vote to authorize the taking. The original complaint alleged, in substance, that the BRA was about to record an order of taking without proper notice and a proper vote. The complaint sought an injunction to prevent the taking, as well as a determination that any taking that might already have occurred be deemed void, and an injunction requiring the BRA to make any recording necessary to effect such determination.
As the plaintiff effectively conceded at oral argument, the materials presently before the Court establish as undisputed that the taking has already occurred, and that the property has already been conveyed to a third party. Accordingly, any effort to enjoin the taking is moot. Those materials also establish as undisputed that any procedural defect that may have occurred with respect to authorization and notice was fully cured not later than January of this year. Moreover, the law is clear that such defects do not affect the validity of the taking. See Kahler v. Marshfield, 347 Mass. 514, 518 (1964); G. L. c. 79, § 16. Accordingly, no actual controversy exists between the parties, for purposes of the Declaratory Judgment Act, with respect to any effect of any procedural defects on the validity of the taking. It follows that the claim pled in the original complaint is subject to dismissal.
The plaintiff proposes to cure the deficiency in the original complaint by filing an amended complaint. The proposed amended complaint sets forth two counts. Count I seeks a declaration that the taking is void in that it is "arbitrary, capricious and done in bad faith, primarily for the furtherance of a private party's purposes." Count II seeks monetary damages for the taking based on the fair market value of the property, pursuant to G. L. c. 79, § 14. The defendant does not oppose the motion to amend as to count II, but does oppose it as to count I, contending that the proposed amendment as to that count would be futile, as that count does not state a claim on which relief may be granted.
The proposed amended complaint alleges that the property is "within the Entertainment and Commercial District of the South Cove Urban Renewal plan," that the BRA and an entity referred to as "the developers" have entered into Cooperation and Land Disposition Agreements with respect to the property and adjacent parcels, and that the developers intend to use the property to build a luxury hotel. It further alleges that, despite having agreed with the BRA that they would do so, the developers did not attempt to acquire the property from the plaintiff through negotiation, by offering the plaintiff fair market value. Further, the complaint alleges, the agreements between the developers and the BRA provided for the BRA to take the property by eminent domain, using funds to be provided by the developer, with the developer to assume certain burdens that might arise in connection with the taking. The proposed amended complaint alleges that the BRA adopted and recorded an Order of Taking, with a pro tanto award less than fair market value, and then conveyed the property for a higher price, without compliance by the developer with various agreed prerequisites to such transfer. Based on these subsidiary facts, the complaint asserts that "the Developers have used the BRA as a straw to obtain title to [the property] at far below its fair market value, have created an assembly parcel whose aggregate value has been materially enhanced by [the property], and have taken title to [the property] through an entity that is not bound by and (sic) use or other land use restriction."
The complaint adds that the particular entity to which title was conveyed was not the one identified in the Land Disposition Agreement, and was not a party to the Cooperation or Land Disposition Agreements.
The BRA, in support of its partial opposition to the motion to amend, has submitted materials establishing that it decided to pursue the hotel project, after a series of public meetings, pursuant to an urban renewal plan adopted in 1965, and approved at that time by each of the various local, state and federal authorities required under state and federal urban renewal statutes, based on the findings required by those statutes, including that the area in which the property lies is a "blighted open area." See G. L. c. 121B. The materials submitted also establish that the entity to which the parcel was conveyed is an affiliate of the entity that has been referred to as "the developers," and that has entered into the Cooperation and Land Disposition Agreements with the BRA. The BRA also points out that, regardless of any such agreements, any entity to which such property might be conveyed would be required by G. L. c. 121B, § 49, to "devote the land to the use specified in the urban renewal plan for said land." On this basis, the BRA contends that the facts alleged do not set forth a cognizable challenge to the validity of the taking.
The materials before the Court, beyond the pleadings, consist of a certified copy of the record of the BRA's administrative proceedings, filed by the BRA as part of its answer to the original complaint.
The Supreme Judicial Court has held that a property owner whose land is taken by eminent domain under G. L. c. 121B may challenge the public purpose of the taking, although such a challenge is subject to a narrow scope of review. See Benevolent and Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531, 539-540 (1988). To obtain such review, however, a plaintiff must set forth "clear allegations of specific facts to state a case for any relief, or to show that any real controversy exists, based upon abuse of such official discretion." Poremba v. Springfield, 354 Mass. 432, 434 (1968); see Omartian v. Mayor of Springfield, 354 Mass. 439, 442 (1968) (affirming dismissal for lack of "specific allegations that improper use of any of the land taken is proposed"); HTA Limited Partnership v. Massachusetts Turnpike Authority, 51 Mass. App. Ct. 449, 455 (2001) (applying to eminent domain context general rule that complaint alleging bad faith is inadequate "unless accompanied by some allegations of specific fact supporting the general allegation"). Allegations that would meet this requirement "may include facts indicating (1) the government body taking the property did not follow its `usual practices' to conduct the taking; and (2) that the site chosen had not been considered at all or not considered suitable for the stated purposes given for the taking." Id. at 456, citing Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 778 (1987); Benevolent Protective Order of Elks v. Planning Board of Lawrence, 403 Mass. at 552-553. Here, the facts alleged in the proposed amended complaint, together with those appearing in the administrative record provided by the BRA, defeat the proposed claim. The proposed pleading itself alleges that the property is within the area of an urban renewal plan, and the BRA's administrative record establishes that the hotel project for which the taking has been made is in furtherance of that plan. Implementation of a valid urban renewal plan is a public purpose. See Benevolent Protective Order of Elks v. Planning Board of Lawrence, 403 Mass. at 551. Nor is a taking under such circumstances void "merely because the disposition of that land indirectly benefits private individuals. Disposition to a private redeveloper of property acquired pursuant to a valid plan may be necessary to achieve the public purpose. Any benefits this disposition may present to the redeveloper are incidental to the main purpose of the plan, which is the elimination of a substandard, decadent or blighted open area." Id. (internal citations omitted).
Although that decision does not directly address the appropriate procedural vehicle for such a challenge, it repeatedly refers to the materials that were before the various state and local authorities as the basis for evaluation of their decisions. See id. at 538-551. These references suggest that the vehicle may be an action in the nature of certiorari, pursuant to G. L. c. 249, § 4, in which review is limited to the record of the administrative proceeding, with neither discovery nor the presentation of evidence before the reviewing court.
The other facts alleged in the proposed amended complaint do not assist the plaintiff. The contractual provisions to which it alludes appear, on their face, designed to protect the public fisc by placing all potential financial risks on the private developer. Nothing in those provisions is in any way inconsistent with the public purpose of the redevelopment plan. The complaint does not allege that these kinds of provisions are a departure from the BRA's usual practices, or that the BRA has in any other way departed from its usual practices with respect to this property. The allegation that the developer has not fully complied with its contractual obligations has no apparent bearing on the question of the purpose of the taking. As to the allegation regarding the inadequacy of the pro tanto, the plaintiff's remedy is to pursue the claim for compensation alleged in count II of the proposed amended complaint; the allegation does not affect the validity of the taking. In sum, the proposed amended complaint, considered in light of the present record of this case, does not set forth a cognizable challenge to the taking. Accordingly, the motion to amend must be denied as to count I on the ground of futility.
Also before the Court is the plaintiff's motion to compel compliance with a deposition subpoena duces tecum directed to the developer. The purpose of the subpoena, as explained in the motion, is to obtain discovery of materials the plaintiff expects will bear on the issue of whether the taking is for a public purpose. As the only claim that will remain in the case does not raise that issue, the motion must be denied.
CONCLUSION AND ORDER
For the reasons stated, the Court rules as follows on the pending motions: The Defendant Boston Redevelopment Authority's Motion for Summary Judgment is ALLOWED insofar as it seeks dismissal of the claim raised in the original complaint. The Plaintiff's Motion for Leave to Amend Complaint is DENIED as to Count I of the proposed amended complaint, and ALLOWED as to Count II. The Plaintiff Bryce Tinmouth, Trustee of Sign Park Realty Trust's Motion to Compel Production of Documents By the General Trading Company is DENIED .
_________________________ Judith Fabricant Justice of the Superior Court July , 2002